A California appeals court has sent back to trial a woman’s wrongful death suit alleging Thomas Dee Engineering Co. Inc. negligently exposed her husband to asbestos when he performed repairs on a U.S. Navy ship, finding that the trial judge was wrong to ignore her expert’s declaration that he could have been exposed to lingering fibers in the air.
The panel reversed a summary judgment that ended Beth Harris’s claims against Thomas Dee Engineering, saying it misinterpreted state precedent on how to deal with an expert’s declaration that conflicts with his deposition.
Beth Harris’s husband, Michael Harris, was a hull maintenance technician on the U.S.S. San Jose from August 1973 to May 1974, and his duties included maintaining the ship’s fire system, which ran through the whole ship. He was diagnosed with mesothelioma in March 2014 and died in October of that year.
His wife sued Thomas Dee Engineering and others in May 2014, alleging the company exposed him to asbestos when its workers replaced boiler components that contained the substance, and the company moved for summary judgment.
The trial court disregarded a declaration from Ewing proffering the “re-entrainment” theory that asbestos fibers could linger in the air indefinitely, and that Harris could have been exposed by going into the boiler room even hours after Thomas Dee’s workers had finished their job.
The appeals panel said the trial court was wrong to completely disregard the declaration, explaining that while the California Supreme Court in 1974 had given guidance that a declaration contradicting deposition testimony may not be sufficient on its own to create a triable issue of fact, precedent does not hold that it should be ignored and disregarded entirely.